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December 28, 2004

The WSJ on the federal Blakely mess

In my Sentencing Year in Review, I praised the media's recent coverage of sentencing issues, and the Fourth Estate is doing me especially proud this week. To go with a powerful NY Times editorial and great Wash. Post pardon coverage, this morning brings another great article from Laurie Cohen at the Wall Street Journal. (A collection of the WSJ articles covering the federal sentencing system could now make a great sentencing reader, with just some of the prior great articles here and here and here and here.)

Disarray has enveloped the federal court system for the past six months since a Supreme Court ruling hinted that the guidelines governing federal sentences may be unconstitutional. As federal judges wait, and wait some more, for the divided high court to deliver a final verdict, they have come up with a myriad of ways to sentence defendants.

The article does an especially effective job detailing the Blakely story from a variety of angles by quoting many federal judges and litigants from various parts of the country. Here's one example of the insightful anecdotes in the piece:

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking juries to find drug quantities and that is "simple for them." But financial fraud cases are another matter. Judge John C. Coughenour, chief judge of the Western District of Washington, yesterday completed an eight-week trial involving 87 counts of tax evasion and other fraud. The jurors came back with guilty verdicts against six defendants. "It's not going to be a simple task for a jury to conclude how much the tax loss was," says Judge Coughenour.

The article also provides thoughtful review of the different views of Blakely waivers, and it has a cool looking map detailing the current circuit variations on what Blakely means for the federal sentencing system while we "wait, and wait some more, for the divided high court to deliver a final verdict." (I have detailed the particulars of the circuit variation in this post.)

The article not only details the mess that is federal sentencing now, but it highlights for me how hard the "clean-up" is going to be for lower federal courts next year no matter what the Supreme Court says in Booker and Fanfan. And I am already looking forward to the WSJ's coverage of that future story.